Damcesvska v Vision Food Solutions (Vic) Pty Ltd
[2011] VCC 1432
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-04178
| DIJANA DAMCEVSKA | Plaintiff |
| v | |
| VISION FOOD SOLUTIONS (VIC) PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 and 30 November 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Damcesvska v Vision Food Solutions (Vic) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1432 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Serious injury - whether the consequences of the worker’s injuries satisfy
the “more than considerable” test
LEGISLATION CITED – Section 134AB Accident Compensation Act 1985
CASES CITED – Barwon Spinners v Podolak [2005] VSCA 33
JUDGMENT – Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Vincent Verduci & |
| Mr A Ingram | Associates | |
| For the Defendant | Ms M Britbart | Hall & Wilcox |
| HIS HONOUR: |
1 Dijana Damcevska slipped and fell during the course of her employment with the defendant on 5 August 2007. She alleges that she suffered an injury to her low back in that incident (“the incident”).
2 She seeks the leave of the Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
3 Her right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by her is a “serious injury”.[1]
[1] Section 134AB(19)(a)
4 The term “serious injury” is defined in sub-s.134AB(37), insofar as is relevant, as a “permanent serious impairment or loss of a body function”.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2] Barwon Spinners v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Ms Damcevska of any impairment or loss of the function of her spine with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3] Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant or marked, and as being at least very considerable”.[4]
[4] Section 134AB(38)(c)
8 The issue to be determined in this application is whether the consequences of the injury to Ms Damcevska can fairly be described as being more than significant or marked, and as being at least very considerable. The defendant admits that Ms Damcevska suffered an injury to her lumbar spine in the accident but denies that the consequences for her of that injury are significant or marked, let alone very considerable.
Background
9 Ms Damcevska was born in Macedonia on 25 October 1975. She is presently thirty-six years old. She was educated to Year 12 level in Macedonia and completed a marketing and business course. She thereafter worked in a clothing factory.
10 In July of 2005, she migrated to Australia. She had worked for the defendant as a kitchen hand at a hostel in Avondale Heights since April 2007.
11 On 5 August 2007, whilst engaged in washing dishes at the premises, she slipped on a wet floor. She fell backwards and experienced low back pain.
12 She had not experienced any symptoms of back pain prior to the incident.
Post Accident
13 Ms Damcevska continued working for a couple of days after the incident before attending upon her general practitioner, Dr Mazzoni.
14 Dr Mazzoni arranged for x-rays of her low back which disclosed no obvious abnormality.[5]
[5] PCB 38
15 Ms Damcevska lodged a claim for WorkCover benefits relating to her injury, which claim was accepted.
16 Dr Mazzoni referred her to physiotherapy and prescribed analgesic medication. He certified her unfit to work for approximately three weeks. Thereafter, he certified her fit for light, modified duties with restrictions regarding prolonged sitting or standing, repetitive bending of the back and lifting weights greater than 8 kilograms. Dr Mazzoni continued to certify her fit for those modified duties with restrictions until March 2008, when she ceased to be employed.
17 Ms Damcevska’s evidence was that, when she returned to work in late August 2007, she was involved in much lighter work than she had previously undertaken. This consisted of setting up of tables, and making sandwiches. There was no lifting of bins, or large pots or heavy containers. It was suggested to her in cross-examination that she had returned to her normal duties, but she denied that this was the case. Affidavits sworn by Raffaele Kaputo and Tracey Cannan adopted statements made by them to the effect that Ms Damcevska had returned to her normal duties without apparent difficulty.[6] Ms Damcevska was adamant that this was not the case and I accept her evidence on this point.
[6] DCB 61, 73
18 Between September 2007 and March 2008, she had no time off work. Her evidence was that she continued to experience low back pain and was doing her best to cope with that pain.
19 At all times, before and after the incident, Ms Damcevska was only employed on a part-time basis, working approximately four hours per day.
20 She stated that whereas, prior to the incident, she would have been able to work full-time had such work been available, following the incident she would not have been able to work more than the four hours that she did per day. I accept her evidence that there was a big difference in the way that she performed her duties after the incident in terms of the speed with which she performed those duties and with regard to the pain and discomfort experienced by her in doing so.
21 In September 2007, Ms Damcevska discovered she was pregnant. She was reluctant to take strong medication in those circumstances.
22 She finished up at work in March 2008. She gave birth to her daughter on 15 April 2008.
23 After the birth of her daughter, she attempted to contact her supervisor on more than one occasion with a view to a return to work. She thought at that time she might be able to cope with the same part-time restricted duties. Her evidence was that her supervisor never returned her calls and never contacted her in relation to a return to work.
24 She has not worked since March 2008.
25 Following the birth of her daughter, Ms Damcevska remained hopeful that she would improve. Her evidence was, and I accept, that Dr Mazzoni had told her that she only had ligament damage and that it would probably improve. However, after a considerable period, her pain had not gone away. She returned to him in September 2009. She asked for a referral to a specialist. Her evidence was that Dr Mazzoni said there was no need for that but she insisted. He provided her with a referral to a Mr Keith Lim. However, it appears that she did not attend upon Mr Lim. In the next month, she changed general practitioners and consulted with Dr Ansari. His practice was closer to where she lived in St Albans. Her reason for changing general practitioners was that she was not happy with Dr Mazzoni, and did not feel that he was respecting her injuries.
26 Dr Ansari has prescribed Panadeine Forte for her. She was experiencing more pain than she had experienced earlier. She takes a combination of Panadeine Forte and Panadeine medication. She takes Panadeine on most days. She regularly takes Panadeine Forte in the mornings and Panadeine in the afternoons. She is conscious of the danger of damaging her stomach with excessive medication. On average, she would use Panadeine Forte five days per week.
27 Dr Ansari recommended a return to physiotherapy but she was unable to afford such treatment. He arranged for further x-rays in November 2009.[7] The radiologist recommended a CT scan which was duly arranged in December 2009.[8]
[7] PCB 39
[8] PCB 40
28 On 3 May 2010, Dr Ansari referred her for an MRI scan of her lumbar spine.[9] This was reported by the radiologist as showing a small posterocentral L5-S1 disc protrusion associated with a small annulus tear. There was minor canal stenosis at this level, associated degenerative spondylosis, but no nerve root compromise. In addition, there was mild bilateral L4-5 and L5-S1 facet joint arthritis reported.
[9] PCB 41
29 Dr Ansari found that she had pain and restriction on flexion and extension of her lumbar spine. Lateral rotation was also painful. She was tender over the lumbar spine. Straight leg raising was restricted bilaterally and she had difficulty sitting up from a supine position. He considered that she was restricted in performing most household chores and that her injuries were affecting her enjoyment with her young child, as she had trouble bending to lift her or play with her.
30 Ms Damcevska reported that her back pain radiated to her hips and down her right leg into the right heel and the toes of her right foot.
31 In due course, Dr Ansari referred her to an orthopaedic surgeon, Mr Brian Barrett, who she first saw in May 2010.
32 Mr Barrett considered that Ms Damcevska had sustained a significant L5-S1 lumbar disc rupture that clearly related to the incident. He considered that she remained unfit to return to even light work. His view was that this type of disc injury has no significant capacity to heal or repair. He told Ms Damcevska that if her symptoms continued at a significant or advancing degree, then fusion at the disrupted disc level would be considered.
33 He reviewed her in August 2011, noting that she continued to require strong analgesics on a daily basis. Her symptoms were said to be aggravated with prolonged walking, prolonged sitting, bending and lifting activities, especially those involving her child, who was by then aged three. She had difficulty managing housework and shopping, both of which tended to aggravate symptoms. On examination, her lumbar movements were considerably limited, particularly in extension. All movements produced low back pain, radiating out to the buttocks. Straight leg raising was again limited. Neurological examination of the lower limbs revealed normal power and reflexes but with some mildly depressed sensation in the right L5 and S1 dermatome regions.
34 Mr Barrett noted that Ms Damcevska’s symptoms had not improved with ongoing conservative treatment and were not assisted by having to manage her three-year-old child through the post-injury period. He considered that the lower lumbar disc injury was physical, genuine, and of a serious nature. He considered that, if in the future her symptoms do not come under adequate control with ongoing conservative treatment, consideration would be given to surgical fusion at the L5-S1 disc level. He considered that the prognosis for healing of lumbar disc ruptures of this type is poor. They have minimal capacity to heal or repair and he expected the symptoms and disability of Ms Damcevska would continue into the future to the point where operative treatment may need to be seriously considered.[10]
[10] PCB 58
35 In mid-September 2011, Mrs Damcevska had a particular flare-up when she was restricted to bed for two days.
36 Dr Ansari thought that the prognosis for her injury remained poor. He thought that there was likely to be a need for surgical fusion if her symptoms did not improve.
37 In June 2011, Dr Helen Sutcliffe, occupational physician, considered that Ms Damcevska had sustained disc derangement and an aggravation of lumbar spine spondylosis as a result of the incident. She accepted that she had had persisting pain from that date. She considered that Ms Damcevska had no capacity for any manual handling occupation and that her lack of language skills would limit her for skilled or sedentary occupations. She also considered that the distracting nature of Ms Damcevska’s pain and difficulties with side effects of medication would also limit her capacity for employment. She felt that the prognosis was poor, that there was no likelihood now of resolution, and that Ms Damcevska would experience low back pain into the foreseeable future with resulting limitation of her day to day activities. She considered that she had sustained very substantial pain as a result of the disc derangement and aggravation of lumbar spondylosis.[11]
[11] PCB 65
38 The defendant had arranged for Ms Damcevska to be examined by Dr Malcolm Brown (occupational physician), Mr Michael Dooley (orthopaedic surgeon) and Dr David Fish (occupational physician).
39 The defendant led no evidence from Dr Fish and I draw the inference that his evidence would not have advanced the defendant’s case. I do not speculate as to what his evidence might otherwise have been.
40 Mr Dooley saw Ms Damcevska in August 2010 and in August 2011. On both occasions, he found her to be tender over the lumbar spine with a reduced range of movement and reduced straight leg raising. He considered that she had degenerative disc disease in the low lumbar spine. Clinically, he thought there was no evidence of objective neurological deficit or nerve root entrapment. He did not believe that Ms Damcevska had ruptured the lumbosacral disc in her work-related fall. Rather, he considered that the fall had aggravated underlying degenerative disc disease. He considered that she had gone on to develop a chronic pain syndrome and that the constancy and intensity of her ongoing pain was out of proportion to the injury sustained.
41 He considered that regular exercise and weight loss would benefit her in terms of improving her pain and reducing the tendency towards despondency and depression. He thought that she would continue to experience low back pain and lower limb pain. He considered that she was unfit to carry out regular heavy physical work or work that involved a lot of bending or lifting. He considered her condition to be permanent. He thought that she remained capable of carrying out light physical work and clerical duties.
42 Dr Malcolm Brown, occupational physician, examined Ms Damcevska in August 2010 and August 2011. He considered that she had:
“…uncomplicated lower back pain with some minor degenerative
changes seen radiologically.”[12]
[12] DCB 14
43 He considered that Mrs Damcevska would benefit from weight loss and a reasonably ambitious exercise program which would be likely to reduce her pain levels and improve functional capacity. He considered that the findings seen on the MRI scan taken on 1 May 2010 are widespread in the asymptomatic population.[13]
[13] DCB 15
44 I do not know what Dr Brown meant by “uncomplicated lower back pain”. I observed Ms Damcevska give evidence. I thought she provided consistent answers, through an interpreter, in a straightforward manner. I did not consider that she was exaggerating her condition. I observed that during the period she was in the witness box, she appeared uncomfortable, having to sit and stand alternately. I accept that she suffers from low back pain. In that sense, I agree that her injury and her consequential pain is “uncomplicated”. What Dr Brown meant by that expression I cannot say.
45 Dr Brown considered that Ms Damcevska’s fall at work did not make any more than a minor contribution to her current symptoms. He appears to accept that she has low back pain but, somewhat confusingly, considers there to be no continuing injury.[14] Dr Brown considered that notwithstanding the lack of any continuing injury, she should avoid heavy lifting and regular bending.
[14] DCB 19
46 The defendant had obtained an opinion of Dr Anthony Cam, radiologist, in June 2010. Specifically he was asked his views concerning the MRI scan of Ms Damcevska’s lumbar spine.
47 Dr Cam noted that considerable time had passed between the work accident and the date of the scan and hence could not say whether the changes demonstrated on it could be attributed to the work incident. However, the evidence before me is that Ms Damcevska suffered from no lumbar spine pain at all prior to the incident and that she has ever since. There is no evidence that she was involved in any other fall or accident which was likely to have caused intervening damage.
48 Dr Cam interpreted the changes seen at L5-S1 as “disc dehydration with an incomplete annular fissure”.[15] He considered that the true cause of annular fissure and disc desiccation is not known but said that it is generally agreed in the medical literature to be multi-factorial and may include degeneration, trauma, body habitus, nutritional and genetic factors, occurring alone or in any combination. I interpret that as meaning that an annular fissure such as seen on the Ms Damcevska’s MRI can be caused by trauma.
[15] DCB 9
49 Mr Dooley concedes that there has been an aggravation of her previous asymptomatic condition.
50 Mr Barrett, Dr Ansari and Dr Sutcliffe consider that the incident caused the disc derangement and aggravation of lumbar spine spondylosis. Mr Dooley considers that there has been an aggravation of the pre-existing asymptomatic degenerative disease.
51 In my view, whichever of those views was accepted, the incident has had profound consequences for Ms Damcevska. The crucial fact is that she was asymptomatic before the incident. She, at that time, had an unrestricted work capacity. She had no restrictions on her ability to carry out activities of daily living and all home duties.
52 Since the incident, she has been considerably restricted by her back injury. She is now unable to undertake any employment which involved lifting of weights above eight kilograms, bending or twisting, prolonged sitting or prolonged standing. She has a young child and I have no difficulty accepting her evidence that she has had great difficulty in handling her daughter in terms of bending to pick her up, putting her in the car, bending to play with her etc. She has pain not only in her low back but down her right leg. She is required to take strong analgesic medication in order to cope with that pain. Her sleep is regularly interrupted. This often leaves her feeling tired and lethargic. She is restricted in her ability to undertake household chores. She is heavily reliant upon her husband to undertake most of the domestic tasks around the house.
53 She has not attempted to return to work since giving birth to her daughter. But for the symptoms that she experiences in her low back, she would have been able to approach a return to work on an unrestricted basis. Clearly, on all of the medical evidence, she has significant restrictions in the work that she could undertake.
54 Ms Damcevska does not seek leave to issue proceedings in respect of pecuniary loss. Nevertheless, I am able to take into account in assessing the pain and suffering consequences of her injury, the fact that she is left with a reduced capacity for employment.
55 I note that the condition she experiences is on occasions serious enough to render her bedridden and that such an incident occurred in September 2011.
56 Although there is no immediate plan to undergo surgery, I note the comments of her treating surgeon, Mr Barrett, to the effect that he expected Ms Damcevska’s symptoms and disability would continue into the future, to the point where operative treatment may need to be seriously considered.[16]
[16] PCB 58
57 I further note the views of Dr Sutcliffe who stated that the prognosis is poor and that there was no likelihood now of resolution. She considered that Ms Damcevska would continue to experience low back pain with limitation to the day-to-day activities as a result. She considered that she had sustained “very substantial pain and suffering” as a result of the disc derangement and aggravation of lumbar spondylosis.[17]
[17] PCB 65
58 I consider that Ms Damcevska was an honest and straightforward witness. I accept that the pain that she has experienced for nearly four-and-a-half years has been substantial. I accept that her condition is, to all intents and purposes, permanent to the extent that it is unlikely to improve in the foreseeable future.
59 Ms Damcevska is a relatively young woman. There was no direct evidence as to her life expectancy. She is now thirty-six and I consider that I am entitled to assume that she has a life expectancy of at least some decades.
60 I accept that the consequences of her injury are more than significant or marked and can fairly be described as being at least very considerable. Accordingly, I am satisfied that she has suffered permanent serious impairment or loss of the functioning of her lumbar spine.
Conclusion
61 For the reasons set out above, I am satisfied that Ms Damcevska has suffered a serious injury as defined in s.134AB(37) of the Accident Compensation Act 1985. Accordingly, there will be leave for her to commence a proceeding to recover pain and suffering damages in relation to the injury suffered in the course of her employment with the defendant on or about 5 August 2007.
62 I shall hear the parties as to costs.
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